The source of the plaintiff's asserted mandatory right to a I-S deferment is Section 6(i)(2), which reads:

"Any person who while satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution is ordered to report for induction under this title, shall, upon the facts being presented to the local board, be deferred (A) until the end of such academic year, or (B) until he ceases satisfactorily to pursue such course of instruction, whichever is the earlier: Provided, That any person who has heretofore had his induction postponed under the provisions of section 6(i)(2) of the Selective Service Act of 1948; or any person who has heretofore been deferred as a student under section 6(h) of such Act; or any person who hereafter is deferred under the provision of this subsection, shall not be further deferred by reason of pursuit of a course of instruction at a college, university, or similar institution of learning except as may be provided by regulations prescribed by the President pursuant to the provisions of subsection (h) of this section. Nothing in this paragraph shall be deemed to preclude the President from providing, by regulations prescribed under subsection (h) of this section, for the deferment from training and service in the Armed Forces or training in the National Security Training Corps of any category or categories of students for such periods of time as he may deem appropriate."

Other instrinsic evidence, moreover, leads to the ineluctable conclusion that Congress in 1951 never intended that men receiving II-S deferments under the amended act would be ineligible for the I-S classification. Briefly, the three exceptions applied to the following registrants:

(a) "any person who has heretofore had his induction postponed under the provisions of section 6(i)(2) of the Selective Service Act of 1948";

(b) "any person who has heretofore been deferred as a student under section 6(h) of such Act";

(c) "any person who is hereafter deferred under the provisions of this subsection".

Two factors carry the day for the plaintiff. First, in referring to Section 6(i)(2) of the 1948 Act Congress used the word "postponed", which, before 1951, was the equivalent to being "deferred" through a I-S. Significantly, the word "postponed" was operative only in the years 1948 to 1951. Therefore, one must conclude that the Act of 1948 referred to was indeed the act which existed before the 1951 amendment, since inductions were no longer "postponed" after 1951.

Secondly, we are persuaded that when Congress intended an exception to operate prospectively it was perfectly capable of making its intention clear. Note that Congress excepted men from the I-S "hereafter" deferred under "the provisions of this subsection." In sum, then, Congress in 1951 excepted from the I-S those whose induction had been theretofore postponed under the old Section 6(i)(2) as well as those thereafter deferred under new Section 6(i)(2). But although men who had theretofore been granted II-S deferments under the old Section 6(h) were excepted from the I-S classification, nothing was said about excepting men who would receive a II-S under the new Section 6(h) thereafter. Expressio unius est exclusio alterius.

We think, finally, that in reenacting these exceptions without change in 1967 Congress cannot be presumed to have added new meaning to the old language. Tyson v. United States, 285 F.2d 19 (C.A. 10, 1960).

II.

The government argues that the registrant may not now avail himself of a I-S classification because in receiving his II-S deferment for graduate study in psychology for 1967-1968 he was "deferred under the provision of [Section 6(i)(2)]." The reasoning goes as follows. The registrant's II-S for graduate study was issued pursuant to Executive Order 11360, July 4, 1967, now appearing at 32 C.F.R. § 1622.26(b), which reads, in pertinent part:

"* * * Any registrant enrolled for his first year of post-baccalaureate study in a graduate school or a professional school on October 1, 1967 * * * may be placed in Class II-S * * * and shall be deferred for one academic year only * * *."

The government is able to find statutory authorization for Executive Order 11360, however, in the last sentence of Section 6(i)(2):

"* * * Nothing in this paragraph shall be deemed to preclude the President from providing, by regulations prescribed under subsection (h) of this section, for the deferment * * * of any category or categories of students for such periods of time as he may deem appropriate."

We believe that the Executive Order 11360 was properly executed under the authority of Section 6(h)(2); that as applied to this registrant the II-S deferment under the order was proper under Section 6(h)(2); and that, in any case, Section 6(i)(2) does not authorize the granting of II-S deferments to students whom the President is not authorized to defer under Section 6(h)(2).

To begin with, we think that Section 6(h)(2) grants the President broad authority to defer any graduate student whose activities are "necessary to the maintenance of the national health, safety, or interest." To this end it was perfectly proper for the President to defer all graduate students enrolled in the first year of post-baccalaureate study in a graduate or professional school on October 1, 1967 for a one year period in order that the academic careers of a large number of students and the welfare of the nation's graduate schools not be seriously injured because of increased manpower needs. In addition, the deferment of a registrant engaged in the graduate study of psychology could well be justified, on an individual basis, as a deferment within the terms of Section 6(h)(2).
*fn3"

Finally, we think that it is quite clear that the language of the last sentence of Section 6(i)(2) merely states that the standards, exceptions, and qualifications which limit the availability of I-S deferments under that subsection are not meant to limit in any way the power of the President to grant II-S deferments under Section 6(h). At most it is an explanation of the standards contained in Section 6(h)(2). We cannot agree that Congress meant this sentence to create in the President a power to grant II-S deferments broader than that authorized in Section 6(h). Section 6(h) was designed to authorize II-S deferments; Section 6(i) was designed to authorize I-S deferments. It is highly unlikely that Congress would have given the President broad power to grant II-S deferments in the last sentence of Section 6(i)(2). Indeed, it is ironic that the government argues that language obviously designed to limit the effect of Section 6(i)(2) upon Section 6(h) should be read to expand the powers of the President to grant 6(h)-type, i.e., II-S deferments. Thus, if the plaintiff's deferment is not authorized in Section 6(h), it is likewise not authorized in Section 6(i). In any case, he has not been granted a II-S deferment under the terms of the last exception to Section 6(i)(2).

(2) who has been deferred as a student in Class II-S and has received his baccalaureate degree. * * *"

This regulation on its face would appear to preclude plaintiff from receiving a I-S deferment. However, the Act itself provides for three exceptions, none of which we have decided is applicable here.

"* * * The fourth exception, which is in § 6(h)(1), in addition to its serviceability for the expressio unius rule, directly supports a reasonable inference from within the statute that Congress intended to provide I-S deferments during the transitional years. It worded the proviso of § 6(h)(1) so as to apply only to persons who receive II-S deferments 'under the provisions of this paragraph.' 'This paragraph' did not become operative until after June 30, 1967. I am unable to find anything in the statute which suggests that Congress left it to the President to judge for himself who should be deprived of the right to a I-S."

Carey v. Local Board No. 2, supra, 297 F. Supp. at 260.

If the Regulation's intendment is to bar plaintiff from a I-S deferment, it is at war with the Act itself which we have concluded entitles plaintiff to a mandatory I-S deferment. The President is not at liberty to repeal congressional enactments. Cf. Commissioner of Internal Revenue v. Acker, 361 U.S. 87, 92, 80 S. Ct. 144, 4 L. Ed. 2d 127 (1959). That function belongs to Congress alone. We will impute no such legally ineffectual purpose to the President, and it seems clear that no such purpose was intended.

"* * * Subsection (2) must be read to exclude from the I-S classification only those persons who have been deferred in II-S after June 30, 1967, and thereafter have received a baccalaureate degree. Such a reading would conform to §§ 6(h)(1) and 6(i)(2) of the Selective Service Act of 1967."

Carey, supra, 297 F. Supp. at 260.

Accordingly, Local Board No. 94 is hereby ordered to reclassify the plaintiff I-S until the end of the academic year and the defendants are enjoined from proceeding with his induction during the period before the deferment is granted.

Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.

Buy This Entire Record For
$7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.